Monday, August 22, 2011

Keeping Up with #EpiGate

If you are going to post or tweet about this issue, rather than using Mr. Epi's name or twitter handle, another epidemiologist, @epiApril, has suggested using #epigate.

The shortest version: Mr. X (a private citizen) and Mr. Epi (an employee of a department of health) got into an online brangle. Mr. X barraged Mr. Epi's colleagues and superiors with threatening emails. Some days later, Mr. Epi's employers asked that he refrain from using social media to talk about public health issues. Mr. Epi has taken down his blog. Both Mr. X and Mr. Epi were, at the start of the brangle, linking their online handles to their real names.

For those of you having questions about how employers may limit employees' speech on social media, please consult The NLRB's New Social Media Guide (sent to me via twitter from Richard Posey). This doesn't apply to Mr. Epi, as he is a state employee.

I wonder: if Mr. Epi were to be sued, would his employer aid in his defense? They can't have it both ways. Either they can restrict his speech and they must, therefore, take some responsibility, or they should allow him the ability to express his opinion openly.

Good thought, but, as you might expect, the law is not quite that simple. Legally, a public employer can restrict the speech of an employee if either the speech is made as part of the employee's official duties or the speech substantially affects the employer's operations.

The employer would have to provide a defense only if EpiRen were speaking in his official capacity. But it's still legal for them to restrict his speech, to some extent, even if he's not speaking in his official capacity. Therefore, there are instances where they can restrict his speech but don't have to defend him.